Innovation still abounds in the process of creating great new applications. But watch out! Lawyers armed with stacks of patents are becoming more and more prevalent. If they succeed, it can only mean very bad news for innovation and, in turn, for software users and the software industry in general. Consider these examples:
Compton's NewMedia was recently granted a patent that covers computer-based search and retrieval of text, graphics, and video. The company now claims its patent covers much of the multimedia work that other developers are doing and is asking other vendors of multimedia titles for significant royalties or distribution rights.
Microsoft and Stac Electronics are currently involved in a patent dispute over the use of data compression in their software. The concept of data compression isn't new, and the algorithms used are in the public domain. The question revolves around how these algorithms are used in software. To shore up their positions, both companies have gone out and purchased earlier patents.
It's been widely reported that when IBM and Microsoft were having trouble coming to terms in their software-licensing deal last year, IBM brought out its portfolio of more than 1,000 software patents. Microsoft then agreed to pay IBM some $20 million to $30 million in patent and licensing fees. Having been burned by Big Blue, Microsoft - which currently holds only 24 patents - now has a goal of applying for about 100 a year.
Meanwhile, things even crazier. We hear that one very large vendor is quietly going around to other software companies and showing off patents on fundamental things, such as indents in word processing documents. Other companies have paid the holders of patents for things like the software expression "net price times quantity equals total cost". In many such cases, large companies find it far less expensive to pay off on such seemingly trivial patents than to fire up the legal staff to pursue the matters in court.
OUT OF CONTROL
The whole process is getting out of control. The U.S. Patent and Trademark Office has granted something like 12,000 software patents in the past decade. It now has a backlog of more than 3,000 software patents. Oh, and under U.S. law, no one even knows what has been submitted for a patent until the patent is awarded. If this trend goes on, you know what the result will be: Only the big companies will be able to buy lots of patent applications and pay the lawyers they'll need to defend those patents. Little software companies will probably find it harder and harder to compete.
All of this gets into the fairly murky area of intellectual property rights. Understand that such rights are supposed to protect the tangible expression of ideas, not the ideas themselves. In general, the concept has worked pretty well. We have patents, which stipulate that the inventor must share all the details of a new invention in exchange for 17 years of exclusive use, and we have copyrights, which protect the exact expression of an idea - from the words in this article to the graphics accompanying it to the music on the radio. We also have trademarks and trade secrets as part of the legal mix.
All of these have their get uses in some areas of technology, but I just don't see where patents make much sense in the software industry. Every single piece of software builds on the work of previous software developers. The concept of software itself - even the way software interacts with a microprocessor - is not new. Most of today's programs comprise ideas and algorithms that have existed for years in other media. Software development by its very nature tends to be evolutionary rather than revolutionary. To my way of thinking, there is little here to patent.
FREE SOFTWARE
There are some extremists around who believe that all software should be free and shouldn't be covered by patents or even copyrights. I disagree. Well-defined intellectual property rights are necessary to give people the incentive to create great new products. Making great software these days costs so much money that companies need to be able to believe that they will get good returns on their investments. But I still want companies to compete on the basis of who has the best software, not who has the best team of lawyers standing by, waiting to unleash a flurry of lawsuits at a moment's notice.
To that end, I think the existing system of software copyrights and trade secrets is enough protection for software. I believe that software companies should be able to copyright their applications. Copying source code without a license, duplicating the way the individual screens look, and simply pirating applications are all wrong, and the creators of software should be protected against such infringements. (On the other hand, the data you create in an application - and even the macros you create - should belong to you, not the application vendor. In this regard, I disagree strongly with Lotus, which seems to think Quattro Pro's ability to run 1-2-3 macros is an infringement of the copyright.) All of these situations are covered today under copyright law. I certainly don't believe that just because a company takes something you could do on paper and puts it into a software program for the first time that it should demand royalties whenever another vendor does the same thing - provided that no one copies its work. After all, mere ideas are not supposed to be protected, only the expression of those ideas in specific ways.
WHAT SHOULD BE DONE
Right now, even the U.S. Patent and Trademark Office is aware that software patents have spun out of control. And unfortunately, the situation has been made worse by problems at the office itself. The commissioner has said that the office's examiners haven't been qualified, that the department doesn't have enough information on precedents in the software industry, and that as a result some patents have been issued that are not going to be defensible in court. Concern seems justified.
The office plans hearings aimed at getting the process under control. That's a start, but I think the whole process needs a second look, and I wouldn't be sorry to see the whole concept of software patents thrown out. I'm sure we'll see a lot of this fought out in court over the next few years - in proceedings that are likely to be expensive, time-consuming and confusing for all involved.